- (1.) This application being G.A.2116 of 2016 has been filed by the wife and daughter of the original defendant no.5 for recording abatement of the suit as against the defendant no.5. The son of the original defendant no.5, however, has not filed any similar application. The basis of the application appears to be an order passed by the Hon'ble Division Bench on 12th July, 2016 by which the appeal was partly allowed by setting aside the order dated 29th July, 2016 in so far as it permits exemption of bringing the legal heirs on record of the original defendant no.5 in view of the fact that the original defendant no.5 although had entered appearance in the suit but failed to file the written statement during his lifetime even though the time to file the written statement was extended twice. The original defendant no.5 died in December, 2008. The plaintiffs proceeded on the basis that by reason of the provision of Order 22 Sub-rule (4) of Rule 4 of the Code of Civil Procedure there would be no requirement to bring on record the legal heirs of the deceased defendant no.5 and thereafter filed an application for judgment upon admission in which they have sought for exemption. The Hon'ble Division Bench while passing the order observed that the right of the original defendant no.5 requires an adjudication as the said deceased defendant claimed absolute right and it is not just that parties to the litigation would have to bear with the benefit or impact of unfavourable order but generations to come whoever would succeed to the interest have to suffer the consequences of the order. Therefore, it was felt that the exercise of discretion under the facts and circumstances may not be proper.
(2.) It was further observed that the fifth defendant having not filed the written statement, the legal representatives must have an opportunity to file such written statement so that they can substantiate their claim over the subject matter of the property. The Division Bench felt that an opportunity be given to file affidavit-in-opposition so far as the application for judgment on admission filed under Order 12 Rule 6 of the Code of Civil Procedure is concerned. The appeal was disposed of by giving liberty to the plaintiffs to file appropriate application to bring on record the legal representatives of the deceased defendant by filing a proper application so as to get them substituted in place of the deceased fifth defendant with all other necessary prayers since the substitution has been sought after eight years.
(3.) Learned Counsel for the plaintiffs submits that no application for substitution has been filed instead an application for review has been filed as according to the learned Counsel the order passed by this Court is not appellable. In view of the aforesaid, the hearing of this application is adjourned till 18th November, 2016. This application will appear along with G.A.No.932 of 2016 on 18th November, 2016.;